MUMTAZ AHMAD Vs. MOHD.USMAN AND OTHERS

JUDGEMENT

(1.) The landlord after purchasing the shop in question and, after waiting for the stipulated period, filed a release application Under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 for the release of the shop No. 331 at Maliital, Nainital on the ground of the personal need to set up a business for his two unemployed sons. The Petitioner/tenant resisted the suit on the ground that his father late Shri Muneer Ahmad Shamshi had taken a roofless structure on lease from one Gusain Dutt, the original owner and landlord of the premises in question. After the death of Gusain Dutt, the property devolved upon his son Bhagwan Dutt from whom the present landlord had purchased the building. The Petitioner contended that the roofless structure was taken from the original landlord by his father with the stipulation that the shop would be constructed by the Petitioner's father at his own expense and that the Petitioner's father would never be evicted except on the ground of default of payment of rent and, in the eventuality, the tenant is evicted, he will take away the super structure that he had constructed.

(2.) Before the institution of the suit, a notice was given by the present landlord terminating the tenancy and intimating the tenant to vacate the premises in question. The present Petitioner filed a reply that he could not be evicted as a perpetual lease was executed in his favour. Subsequently, a release application was filed in which a preliminary objection was filed with regard to the maintainability of the writ petition (sic, release application) on the ground that a perpetual lease was given on the basis of which the Petitioner could not be evicted. In support of the stand taken by the Petitioner, an affidavit of one Khalil Ahmad was filed indicating that through his intervention, a roofless structure was let out to the father of the Petitioner in the year 1935 with the stipulation that the shop would be constructed at the expense of the Petitioner and that he would not be evicted except on the ground of default. The preliminary objection was rejected by an order dated 13/12/2007.

(3.) Subsequently, the Prescribed Authority, after considering the material evidence on record, rejected the release application on the ground that the landlord had not been able to prove the bonafide need either for himself or for his sons. The Prescribed Authority found that the landlord had two vacant shops in his possession on the ground floor of his residential house which he could utilize himself or to set up a business for his sons. The trial court, however, rejected the stand of the Petitioner/tenant with regard to the roofless structure being given to his father on a perpetual lease. The Prescribed Authority relied upon various certified copies of the municipal assessment orders to indicate that the shop was in existence prior to the letting out to the Petitioner's father and, consequently, dispelled the theory raised by the Petitioner to the effect that a roofless structure was let out to the Petitioner's father in the year 1935.